Impact Design, Inc. v. Banczyk

The plaintiff has demurred to counts II and III of the counterclaim filed by the defendant, Barbara Marie Banczyk.

The Court is of opinion that the allegations of count II are insufficient to set forth a good cause of action. Accordingly, the demurrer will be sustained as to count II. The defendant will be granted leave to amend count II within twenty-one days from the date hereof, if she be so advised. Otherwise, count II will stand dismissed. A demurrer to a motion for judgment or counterclaim containing several counts will be overruled, if any one of the counts be good; and the same rule applies to a demurrer to a single count containing a demand of several matters, which are divisible, if any of them is well pleaded. Wright v. Smith, 81 Va. 777 (1886). Where a count sets out a demand of several matters which in their nature are divisible, any one of which is well claimed, that is sufficient and a general demurrer to the whole count should be overruled. Portsmouth Refining Co. v. Oliver Refining Co., 109 Va. 513, 64 S.E. 56 (1909).

The Court is of opinion that the allegations of count III state a good cause of action in quantum meruit. Accordingly, the demurrer will be overruled as to count III and the allegations in count III not material to the claim in quantum meruit will be treated as surplusage. The plaintiff will be required to answer count III within twenty-one days from the date hereof.